3. Where a right of action is vested, and an action commenced, nothing can deprive the plaintiff of his right to recover, except some act done by himself in relation to that right. Ibid. 4 If the defendant in his plea, aver, that prior to the suing out of the writ, he settled the debt of the plaintiff, it is sufficient as to time; for the suing out of the writ, is the commencement of the suit. Bird, Savage and others v. Caritat. 2 Johns. Rep. 342. 5. The suing out of the writ is the commencement of the action, and the cause of action must be stated, in the declaration to have arisen prior to the commencement of the suit. Cheetham v. Lewis. 3 Johns. Rep. 42. 6. 1. An action cannot be maintained, in this state, on a judgment recovered in another state, in an action commenced by an attachment of goods, without any personal summons, or actual notice to the defendant; and who was, at the time of issuing the attachment, a resident in this state. Kilburn v. Woodworth. 5 Johns. Rep. 37. 1. Cause of; when it accrues. When the defendant had agreed to remove his goods from a store, in May, 1803, but neglected to do so, in consequence of which, the plaintiff, in 1806, was obliged to pay damages to the person to whom he had sold the store; it was held, that the cause of action accrued, when the defendant neglected to remove the goods, in 1803, and not when the plaintiff was obliged to pay damages, in 1806. M'Kerras v. Gardner. 3 Johns. Rep. 137. III. Removal of. 1. Delt by a state against an Alien, on a forfeited recognizance to be of good behaviour, &c. is a suit of a criminal nature, and cannot be Trespass and not case lies for eneroaching on a lead mine, though the plaintiff has not property in the soil above the mine, but only a liberty of digging. Harker v. Birckbeck. 1 Blackst. 482. 3 Burr. 1556. 3. Causing water to overflow another inan's fishery or land, though by an act on the party's own soil, is a trespass. Courtney v. Collett. 1 L. Raym. 272, (see Haward v. Banks. 2 Burr. 1114.) : 4. 5. Case lies for breaking the fence of a third person, by which my cattle escape into his land, and are distrained. Ibid. When the act is lawful, (as the entering a yard by him who has a right to go there, and the fixing a spout there,) but the consequence is injurious, the remedy is by case, and not trespass. Reynolds v. Clarke. 1 Str. 634. 2 L. Raym. 1399. 6. Either case or trespass will lie for wrongfully entering and seizing plaintiff's ship, of which he was master, and by which he lost Lis voyage. Pitts v. Gaince & Firesight. 1 Salk. 10. 1 L. Raym, 558. Childs & Sands. 1 Salk. 31. 7. To support an action on the case, there must be damnum cum injuria. Winsmerev. Greenbank. Willes, 577. 8. If a man undertake for a valuable consideration to do what is impossible, an action will lie against him for nonperformance. Thornborów v. Whitacre. 2 L. Raym. 1164. 9. Action for mesne profits (including the costs of the ejectment) brought in the name of the lessee against the tenant in possession, after judgment by default, held to be maintainable. Assin v Parkin. 2 Burr. 665. 10. And against the bank, &c. for refusing to transfer stock. Rex v. The Bank of England. 2 Douglas, 524 to 527. 11. Case in nature of waste, will lie against tenant for years after the expiration of his term, as well as covenant for the breach of those contained in his lease. Kinlyside and Thornton. 2 Black. 1111. 12. By the lord of the manor, for a fine upon the admission of an infant copy-holder, when he comes of age, good. Evelyn v. Chichester. 3 Burrows, 1719. 13. Action on the case for money had and received to the plaintiff's use, ought to be brought against the prin cipal, not against a receiver or collector. Sadler v. Evans. 4 Burr. under a larger sum. Otherwise, if the owner had directed the auctioneer to set the horse up at such a particular price, and not lower. Bexwell v. Christie. 3 Cowper, 395. 18. In actions on the case, satisfaction made to the plaintiff pending the suit will take away the remedy. Bird and Randal. 1 Black. 388. 19. Case for disturbing him in the exereise of the office of parish-clerk, good. Lee v. Drake. 2 Salk. 468. 20. Actions of debt on judgment, not to be favoured. Biddleson & Whitell. 1 Blackstone, 507. 21. Actions trifling discouraged by the court. Anon. Black. 207. 22. Case lies where the plaintiff had a possession without any property. Keeble v. Hickeringhall. 3 Salk, 9. 23. Where the injury is committed by the immediate act complained of, the action must be trespass; where the injury is consequential upon that act, case is the proper remedy. Day v. Edwards. 5 Term Rep. 648. Savignac v. Roome. 6 Term Rep. 125. Leame v. Bray. 3 East, 593. 24. The true criterion is, whether or not the injury were received by force if it were, the action must be trespass. It is immaterial whether it were wilful or not. 3 East, 599. 25. If I put in motion a dangerous thing; as, if I let loose a dangerous animal, and mischief ensue, I am answerable in trespass, though the case of Scott v. Shepherd (that of throwing the squib) goes to the limit of the law. 3 East, 598. 26. For false imprisonment the dis tinction between case and trespass is this; where the immediate act of imprisonment proceeds from the defendant, the action can only be trespass but where the act of imprisonment by one person is in consequence of information from another, there an action on the case is the proper remedy. Morgan v. Hughes. 2 Term Rep. 232. [And see Stonehouse v. Elliot. 6 Term Rep. 315.] #7. A plaintiff cannot declare in an action on the case, that the defendant so furiously drove his cart, that by his improper conduct it was driven with great force against the plaintiff's carriage, per quod, the loss happened; his remedy is trespass vi & armis. Day v. Edwards. 5 Term Rep. 648. 28. A declared in case against B, for sinking his boat, and after averring a non-feasance in B, as the cause, stated him to have acted with great force and violence in accomplishing the injury; A recovered; and on error brought because the action should have been trespass, not case, and because the two actions were mixed, the Court of Exchequer Chamber referred the two concluding expressions to the non-feasance first stated, and held the delaration 33. And if such act be done wilfully 35. In an action for negligently driv- 6 36. An action of trespass will not lie for a consequential injury. 1 Mass. 1. 145. case. A termor of a house, if he shews that he has a residuary interest after the expiration of a lease to an under lessee, may have an action on the ease against such under lessee for negligently keeping his fire, by which the house was hunrt. Hicks v. Downling. 1 Salk. 13. 1 L. Raym. 99. sufficient to support the judgment. II. Who may maintain action on the Turner & al. v. Hawkins & al in Cam. Scac. 1 Bos. & Pull. 472. 29. An action on the case stating that the defendant's servant wilfully drove against the plaintiff's carriage whereby it was damaged, cannot be supported: it should have been trespass. Savignac v. Roome. 6 Term Rep. 125, and Tripe v. Potter. 6 Term Rep. 128, n. 30. Where one accidentally drove his earriage against another's, the reinedy is trespass and not case; the injury being immediate from the act done; though he were no otherwise blameable than by driving on the wrong side of the road in a dark night. Leame v. Bray. 3 East, 593. 31. If A wilfully run his vessel against B's, and damage ensue, B may 3. bring trespass; but if A so negligently steer his vessel that it runs foul of B's, then ease is the proper action. Ogle & al. v. Barnes & al. 8 Term Rep. 188. 32. Case and not trespass is the proper remedy for an injury done to the plaintiff's carriage by the servant of the defendant negligently driving his carriage against it. Morley v. Gainsford. 2 H. Black. 442. Otherwise, where the whole term is 4. Where the inhabitants of a certain vill have a prescriptive right to cross a ferry, toll-free, and all the king's subjects have a right to pass the same, paying toll; one of the above inhabitants may maintain an action against the ferryman for taking toll, but not for not keeping up the ferry. Payne v. Partridge. 1 Salk. 12. Reversioner may bring an action for an injury done to the inheritance. Jesser v. Gifford. 4 Burr. 2141. bance of his right: his remedy is for the penalty given by the statute. Almy v. Harris. 5 Johns. Rep. 175. III. Consequential damages by neglect, &e. 1. 2. 3. 3 Burrows, 1879. 7. For when brought by a father, for assaulting his daughter, being 23 years old, and then in the service of another person; and getting her with child; "per quod, THE FATHER, servitum amisit." And the faet proved was, that she was gotten with child by the defendant during her service abroad; and becoming unable to perform it, was discharged by her master; and was received by her father, out of necessity; and lodged, boarded, and maintained by him in his own house, both before and after her lying-in; it was holden, that the father could not maintain the action. Ibid. 8. Case lies by an administrator against the bailiff of a liberty for executing a fi fa: and removing the 5. goods off the premises before the landlord was paid a year's rent. Palgrave v. Windham. 1 Str. Rep. 212. 9. An executor, as such, may have an action of tort for an injury done to the personal estate of his testator in the testator's life-time. Williams v. Grey. 1 L. Raym. 40. 1 Salk. 12. 10. A consignor may maintain an action against a carrier, after consignment, upon his agreement. Davis v. James. 5 Burr. 2680. 11. An alien enemy may maintain an action upon a ransom bill. Ricord v. Bettenham. 3 Burrows, 1741. 12. An action on the case will not lie against a sheriff who serves an execution after it has expired; it should be trespass. Vail v. Lewis & Livingston. 4 Johns. Rep. 450. 13. A person having a right to a ferry, granted under the act to regulate ferries, cannot maintain an action on the case for the distur 4. . 6. An action on the case does not lie at the suit of the College of Physicians against an apothecary for administering medicine without a licence, though he is thereby practising physic. Physicians (College of) v. Rose. 3 Salk. 17. Action on the case does not lie against postmasters general for loss of bills enclosed in a letter. Lane v. Cotton. 1 Salk. 17. 1 L. Raymond, 6-16. Action on the case lies against returning officer for refusing to permit a free burgess to vote. Ashby v. White. 2 L. Kaymond, 938. Salk. 19. 1 An action lies against a farrier for refusing to shoe a horse when he has time. Lane v. Cotton. : : 1 L. Raym. 654, q. Obit. Diet. A sheriff is liable to an action for taking insufficient bail. Ethericke v. Cooper. 1 L. Raymond, 425. 1 Salk. 99. Action lies against an attorney for neglecting to charge a person in execution at the suit of the plaintiff, according to a rule of court, although it appears to be rather want of judgment than negligence. Russel v. Palmer. 2 Wils. 325. 7. Action lies against surgeon and apothecary for want of skill, in disuniting the callus of plaintiff's leg, after it was set. Slater v. Baker and Stapleton. 2 Wils. 359. 10. Case lies equally against carrier or wharfinger, for negligence in their trust, by which goods are stolen or lost. Ross v. Johnson & Dowson. 5 Burr. 2825. 11. If a man undertakes to carry goods safely and securely, he is responsible for any damage they may sus tain in the carriage through his negleet, though he was not a common carrier, and was to have nothing for the earriage. Coggs v. Barnard, 2 L. Raymond, 909. 1 Salk. 26, 522. 3 Salk. 11, 268. 12. Action upon the case for an escape upon mesne process, lies although the prisoner returns to the Fleet the same day, and this after plaintiff has proceeded to final judgment against prisoner. Ravenscroft v. Eyles, Esq. Warden of the Fleet. 2 Wils. 294. 13. Case lies against a sheriff for letting a man arrested on an excommunicato capiendo, escape. Slipper v. Mason. 2 L. Raymond, 788. 14. Action upon the case lies for the escape of an outlaw. Cooke, qui tam v. Champneys. 2 Str. 901. 15. Case on the custom of the realm lies against a man for damage done by a fire he has lighted in his field, unless such damage was occasioned by the act of God. Turberville v. Stampe. 1 L. Raymond, 264. 1 Salk. 13. 16. Lies for a shipwright, for work and labour done, and materials delivered, in repairing a ship; though the ship was burnt in the dock, by a fire communicated from land, just before the repairs were completed. The dock belonged to the shipwright; but the owner of the ship had agreed to pay him 5. for the use of it. Menetone v. Athawes. 3 Burrows, 1592. 17. Case lies against the proprietor of tithes for not taking them away, And the plaintiff may declare with a per quod, the grass did not grow where the tithes lay, and he could not put his cattle into the close to de3 pasture the residue of the grass, lest they should hurt the tithes. Shapcott v. Mugford. 1 L. Raymond, 187. And Butler v. Heathby. 3 Burr. 1891. 18. Case for suffering a fence between the plaintiff's and defendant's close to be out of repair, per quod defendant's cattle entered plaintiff's close, &c. Where a charge against common right is laid on owners of the soil, plaintiff must make a title; and a prescription is sufficient. · Prescription in tenentes and occupatores is well. Star v. Rookesby. 1 Salk. 335. 19. Case for not repairing the partition wall of defendant's privy, pro defectu, of which the filth ran into the plaintiff's cellar. Gist. Where the charge is upon the defendant of common right, the plaintiff need not prescribe in his declaration. Tenant v. Golding. 1 Salk. 21. 360. 2 L. Raymond, 1089. 20. Case against a corporation for not repairing a creek, into which the tide of the sea flowed and reflowed (but not saying it was a navigable river) as from time immemorial they had been used, the action lies, though no special damage be stated. And saying 66 as from time immemorial they had been used" is well enough, without alledging that they were bound, &c. ratione tenure, or other special cause. Lynn (Mayor) v. Turner. Cowper, 86. 21. An action on the case will not lie against a party suing out a writ, for neglecting to countermand it after payment of the debt, by means whereof plaintiff was arrested; at least unless malice be averred. Scheibel v. Fairbain & al. 1 Bos. & Pull. 388. 22. Nor even though the costs were paid as well as the debt. Page v. Wiple. 3 East, 314. 23. And if in such a case it were incumbent on the party suing out the writ to countermand the arrest, what is a reasouable time for doing so, is a question of law. 1 Bos. & |